Opinion
W.C. No. 3-062-456.
March 20, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated November 29, 2006, that assessed a penalty of $100 for a one-day violation of § 8-43-304(1), C.R.S. 2006. We affirm.
The ALJ's pertinent findings of fact are as follows. The parties entered into a stipulation that the respondents had an overpayment of $4,402.77 as of April 14, 2005. ALJ Martinez approved the stipulation on June 29, 2006. The insurer filed a final admission of liability on July 20, 2006 in which the overpayment was listed as $4,471.80 contrary to the amount stipulated by the parties and approved by ALJ Martinez. The insurer paid periodic benefits in the correct amount after the final admission of liability was filed. The claimant's counsel wrote to respondents and advised of the error but respondents did no respond and the claimant filed an application for hearing. The insurer, before the hearing date, filed an amended final admission of liability which listed the correct overpayment amount of $4,402.77 as stipulated by the parties and approved by ALJ Martinez. The claimant incurred expenses and lost income in consulting with his attorney and appearing for hearing regarding the incorrect final admission of liability.
The ALJ found that the final admission of liability filed by the insurer did not comply with the terms of the stipulation and the insurer violated ALJ Martinez's order approving the stipulation. The ALJ further found that the respondents did not offer a reasonable factual or legal explanation for its action. The ALJ determined that there was only one violation, the day the incorrect final admission of liability was filed, and there was no continuing violation. The ALJ concluded that the claimant had some loss due to the erroneous final admission of liability and assessed the penalty in the amount of $100.
On appeal the claimant contends that the ALJ erred as a matter of law concluding that there was no continuing penalty under § 8-43-305, C.R.S. 2006 and finding there was only one violation.
We first note that the record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ's factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
As noted by the ALJ in his order it is provided in § 8-43-305, C.R.S. 2006 that every day during which an insurer fails to comply with any lawful order of an administrative law judge shall constitute a separate and distinct violation thereof and in any action brought to enforce the same or to enforce any penalty provided for in said articles, such violation shall be considered cumulative. However, the ALJ found that the insurer's error did not result in the claimant receiving an incorrect amount of periodic benefits. The ALJ concluded that there was only one violation, the day the incorrect final admission of liability was filed.
The thrust of the June 29, 2006 order entered by ALJ Martinez was that as of April 14, 2005 the respondents had an overpayment in the amount of $4,402.77 and that the respondents were to modify the temporary disability and permanent disability benefits presently and previously paid the claimant based on the revised offset. Exhibit 10 at 6. The ALJ determined that the claimant was paid the correct amount of periodic benefits pursuant to the stipulation and order approving the stipulation. The respondents' duty to make payments pursuant to the stipulation existed on a continuing basis. However, the respondents only violated the terms of the order in listing the amount of overpayment in the admission on one occasion.
In Kennedy v. Industrial Claim Appeals, 100 P.3d 949, (Colo.App. 2004) the claimant failed to obey an order by a prehearing administrative law judge (PALJ) to attend a division-sponsored independent medical examination (DIME). The ALJ ordered the claimant's right to collect indemnity benefits should be denied under § 8-43-404(3), C.R.S. 2006, until such time as the claimant attends the DIME was affirmed. In addition the ALJ order further imposing a one-time penalty of $500, pursuant to § 8-43-304(1) based on the claimant's failure to attended the DIME as required by the PALJ's order, and this order of the ALJ was affirmed.
Moreover, we have previously upheld orders imposing penalties for a one-day violation and rejected the contention that a penalty for daily violations as provided in § 8-43-305 must be imposed. See Porras v. World Service Co. Inc., W.C. No. 4-155-161 (October 12, 1995) (ALJ properly restricted penalty against insurer to single day for direct contact with Division-sponsored independent medical examination physician); see also, Smith v. Reliable Roofing Co. W.C. No. 4-174-578 (May 8, 2001) (ALJ imposed penalty under § 8-43-304(1) for perjured testimony for single day and rejected claimant's argument of continuing violation).
Section 8-43-304(1) affords the ALJ wide discretion to impose a penalty up to $500 for each offense. We may not disturb the ALJ's exercise of discretion in the absence of an abuse. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reasons as where it is not supported by the evidence or the law. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo 1998); Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). We cannot say the ALJ abused his discretion in failing to assess a greater penalty. Industrial Claim Appeals Office v. Orth, supra; cf. Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error). Under these circumstances we cannot say the ALJ erred as a matter of law in restricting the penalty to a single day.
IT IS THEREFORE ORDERED that the ALJ's order dated November 29, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Andy Quintana, 3307 S. Highland Drive, Clifton, CO, Sundstrand Aviation Ops, CO, Liberty Mutual Group, Mary Anders, Irving, TX, Killian, Guthro, Jensen, P.C., Any K. Eaton-Fitzpatrick, Esq., Grand Junction, CO 81502 (For Claimant).
Law Offices of Richard P. Myers, David Kroll, Esq., Denver, CO, (For Respondents).